The postings of a customs lawyer in Chicago on the state of customs law and international trade law. Important Disclaimer: None of this is legal advice, don't act on it. Don't ascribe these statements to my law firm, its partners or clients. Don't steal from my blog. I wrote it, I own it. But, feel free to link to me. Also, under the rules regulating speech by attorneys, this blog may be construed as lawyer advertising. I am the sole party responsible for the content.

Monday, October 08, 2012

Update in Active Frontier

As you might gather from the title of this post, there has been more activity in the Active Frontier case. I previously posted about the question of whether the United States had properly pleaded the materiality of an allegedly false statement of origin.

After the previous decision, the Court of International Trade gave the United States 30 days in which to amend its complaint to set forth facts showing that it is entitled to relief. In response, the U.S. filed a motion to amend but failed to attach an amended complaint to the motion. Rather, the motion stated that the government would amend the complaint with respect to the element of materiality within three days of the Court granting the order. This implies (at least to me) that the amended complaint was pretty much ready to go.

But, without the document to review, the Court found no way to determine whether "justice . . . requires" allowing the amendment. Thus, the Court denied the motion, adding that the amendment should have been included with the motion to allow the Court to determine whether it should be granted. But, the Court granted an additional three days in which the government could refile, effectively ending up where the motion had requested.

This is an extraordinarily procedural decision, which normally would not merit attention here. In fact, I feel a little bad about the whole affair. But, it does point out a question I have heard from young lawyers and extremely logical law students. A lawyer seeking to amend a pleading, file an extra brief, or otherwise submit something to the Court without permission has a bit of a chicken and egg problem. The rules generally require leave of the Court or at least the consent of the opposing party to file an extra or revised document. Once permission is granted, the lawyer can comfortably file the document. But, if you file the document with the Court before you have permission, you are probably in violation of some rule. So, it makes sense to file a motion to ask for permission to file the document without including the document.

On the other hand, my impression is that the Court generally wants to know whether the document the lawyer is seeking to submit is proper and useful. After all, why would the Court permit an amended complaint if it does not cure the existing defect or assert a valid new claim? Consequently, it may want to take a look before deciding whether it should be filed. In some cases, like this one, the contents of the document is what will determine whether it should be filed at all.

So, what usually happens is that lawyers file the motion to submit the document with the document attached, but as an exhibit rather than as the thing itself. In other words, the document labeled "Amended Complaint" is filed as an attachment to the motion and not simply submitted to the Court as an Amended Complaint. In this way, the lawyer has not actually improperly filed anything and the Court can, if it chooses to do so, look at the document to determine whether it should be filed. If the motion is granted, the attachment is docketed and becomes the official document.

If you read Active Frontier without that context, you might have either scratched your head wondering why lawyers would possibly argue about something like this or assumed someone had made a silly mistake. With that context, maybe you'll see that things are not always as clear as they look on paper.